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Chris T., JD, Attorney

Category: Legal

Satisfied Customers: 4213

Experience: Experienced in both state and federal court.

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My daughter is 8 years old and has been in therapy in regard

Resolved Question:

My daughter is 8 years old and has been in therapy in regard to newly diagnosed ADHD. In doing so, issues have arisen regarding the stresses and anxiety she experiences due to the divorce between her father and myself who I share 50/50 joint custody. He does not believe she has ADHD eventhough she was tested by an independent Pediatric Neuropsychologist using Gold Standard testing. Her school has also indicated issues but last year believed that she is easily redirected to get back on task. Now her father wants a second opinion and has requested he get a copy of all of her therapsists notes from their sessions. My daughter had an anxiety attack when her dad came to therapy worrying that her Dr. would reveal everything she talked about in her sessions. The therapist also feels that it would be mentally deterimental to her for her father to get the records and would destroy their therapeutic relationship. My daughter was told that whatever she says in therapy stays in therapy and that all is confidential. Question: Can her dad get her mental health records?

In most cases under HIPAA rules, a parent or guardian is the personal representative of the minor child and can exercise the minor’s rights with respect to protected health information, because the parent usually has the authority to make health care decisions about his or her minor child.

Customer:

so what does that mean?

Chris T., JD :

However, in most custody agreements, one parent is designated as the parent to make medical decisions if the parents can't agree.

Chris T., JD :

It means that a parent could, in theory, have access to her mental health records.

Customer:

Unfortunately we do not have that in our parenting agreement. We would need to go to mediation but he refuses.

Customer:

The problem is that in releasing these records to him it would be detrimental to her mental health. The therapist is willing to testify to this

Customer:

My other issue is that her father is an attorney

Chris T., JD :

I understand. Let me check one thing. I want to see if there are any exceptions to the rule related to mental health records.

Customer:

I have no issue and either does the therapist giving him her plan for treatment, but it's the intimate details of her therapy that are the issue. I'm thinking that I'm going to have to go in on an emergency motion to stop him from getting those records.

Chris T., JD :

As you can see here, there are some grounds by which your daughter could protect her records, if the therapist believes it would be detrimental to her mental health, which you have indicated she does.

Customer:

Her father says that he wants to get a second opinion, but in getting the initial evaluation, no records were necessary. I do believe there is an alternate agenda.

Customer:

is there an age identified with this?

Chris T., JD :

If I were in your position, I would first try to stop this through the therapist. If the therapist believes it would be detrimental to your daughter, she can refuse. Your ex then has to decide if he is willing to litigate the issue with the therapist. If he is, they you can raise your points about how damaging the release of the records to the father would harm the child.

Chris T., JD :

My guess is that he will not want to litigate the issue.

Chris T., JD :

There isn't an age specified.

Chris T., JD :

If he wants to get a second opinion, the therapists can exchange notes without involving him.

Customer:

That's what we thought. I have put in three requests to him for the contact information of the therapist in order to have him/her vetted, but have not received any response.

Customer:

just to be clear. What do you mean by stop this through the therapist?

Chris T., JD :

The therapist can refuse to give him the records. If he believes the therapist is wrong, he will have to file suit.

Customer:

OK...thank you. Thanks for the HIPPA info. This does pertain to Illinois also

Chris T., JD :

Yes. HIPAA is federal law.

Customer:

thank you...thank you...

Chris T., JD :

Glad to help!

Customer:

that helps. I will forward this on the therapist

Chris T., JD :

No problem. If there isn't anything else I can do for you, please remember to "rate" my answer before you go.

I will tell you that...the things you have to go through to be an Expert are quite rigorous.

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